In a week and a half, Israel’s polling stations will open and Israelis will elect their representatives to the Knesset for the fourth time in two years. As was the case in the last three elections, the upcoming elections revolve around one issue – Israel’s legal fraternity.
All aspects of public life in Israel today are dictated by the attorney general and the Supreme Court, which have devoured the powers of the Knesset and the government. Over the years, the legal fraternity has acted through judicial and bureaucratic fiat to cancel the checks and balances on its power. Today, the attorney general and the court justices determine their own powers. Not surprisingly, as far as both are concerned, their powers are unlimited.
Whether the issue is deciding who is a Jew, public funding of cultural institutions, public health policy, land use, economic priorities, open fire orders, immigration policy, counter-terror policies, or other questions from the mundane to the existential, the only decision makers in Israel are the attorney general and the Supreme Court justices. Elected leaders are at best, advisors.
To preserve and protect their powers, the attorney general and the justices have the state prosecution. The attorney general’s role as head of the state prosecution gives him the power to strike terror in the hearts of Israel’s elected leaders. They know that he holds the power to open criminal probes against them whenever he wishes. The very existence of this threat generally suffices to convince a majority of politicians to keep their heads down and loudly extol the “rule of law” – that is, the unlimited power of state lawyers – as the guardian of Israeli democracy. Politicians who have spoken out against the legal supremacists have invariably paid the price.
This brings us to Prime Minister Benjamin Netanyahu. Although substantively, every election since April 2019 has revolved around the unchecked powers of the legal fraternity, the media have presented the elections as referendums on Netanyahu.
While the pronouncement is a distortion of reality, it isn’t entirely ungrounded. It is not Netanyahu’s record that is being judged. As far as the anti-Netanyahu media are concerned, the less his record of achievement is discussed, the better.
Rather, the media is able to cast Netanyahu as the central issue of the elections because he is the current target of the legal fraternity’s continued efforts to seize all governing powers from Israel’s elected leaders. Every pathology of the legal fraternity’s unchecked powers is present in the campaign it is waging against Netanyahu. Attorney General Avichai Mendelblit is waging an unlimited war against Netanyahu because he recognizes that Netanyahu’s political fortunes will determine the legal fraternity’s future. If Netanyahu prevails, the legal fraternity will be stripped of its unchecked power. If he is defeated, the fraternity’s control over the country will be institutionalized.
Netanyahu’s opponents on the Right don’t see things this way. Both Yamina chairman Naftali Bennett and New Hope Party chairman Gideon Sa’ar insist there is no connection between the legal fraternity and its war against the premier. Both men claim to support comprehensive legal reform and both say that such reform can happen without reference to the fraternity’s war against the prime minister. Sa’ar underlined this point this week by announcing that he is “considering” supporting a law that would give the attorney general the power to fire the prime minister by compelling a prime minister to resign if the attorney general indicts him. Bennett says he supports proposed legislation that would give criminal immunity to serving prime ministers, but would not apply the law to Netanyahu.
Bennett and Sa’ar start each discussion of legal reform by insisting Netanyahu has no credibility on the issue. For decades, they note, Netanyahu blocked efforts to rein in the legal fraternity. And they are right.
Not only did Netanyahu sit on the sidelines as the unelected lawyers seized ever-wider powers from the Knesset and the government. He also did nothing as successive attorneys general targeted politicians for destruction through frivolous criminal probes. Netanyahu voiced no objection as now-President Reuven Rivlin, now-Attorney General Avichai Mandelblit, and then-ministers Avigdor Lieberman, Avigdor Kahalani, Raphael Eitan, Yaakov Neeman, Haim Ramon and Tzahi Hanegbi were brought before prosecutorial star chambers.
Only now, when the legal fraternity Netanyahu protected has come after him, Netanyahu has suddenly become a champion of the reforms he blocked for years.
Sa’ar and Bennett are right to say that Netanyahu’s sudden desire for legal reform is based on his personal interest. If Mendelblit weren’t seeking to destroy him, he would have continued to block all reform efforts.
But the fact that Netanyahu is an opportunist doesn’t make Bennett’s and Sa’ar’s substantive claim – that you can separate legal reform from Netanyahu’s legal woes – correct. To the contrary, they are entirely wrong. You cannot separate the two.
To be clear, there is nothing reasonable about Mandelblit’s prosecution of Netanyahu. In stark violation of Israel’s Basic Law, the criminal probes of Netanyahu were initiated without Mandelblit’s written authorization. And it was all downhill from there. The central charge in the indictment, “bribery” relates to non-criminal actions that Netanyahu undertook. Specifically, Mendelblit claims that Netanyahu’s efforts to receive positive coverage from a media outlet owned by a personal friend of his was solicitation of a bribe. And when his friend’s media outlet published a couple of supportive stories, Mendelblit maintains, his friend paid a bribe to Netanyahu. In other words, Mendelblit invented a new form of bribery, not mentioned in Israel’s criminal code or the criminal codes of any other democracy. The implication of Mandelblit’s determination is not simply that Netanyahu is being railroaded. It is far broader than that. His invention of this new form of bribery transforms the professions of journalism and politics into criminal enterprises. To pursue Netanyahu, Mendelblit has turned criminal law and criminal procedure on their heads.
Mandelblit’s predatory obsession with Israel’s elected leader has served not merely to put the fear of God into Israel’s politicians. He has used his outrageous campaign against Netanyahu as justification to expand his own powers beyond anything imagined in law. Citing Netanyahu’s scurrilous indictment, he seized the government’s power to appoint the chief prosecutor and barred the prime minister from being involved in the selection of the police commissioner.
He has similarly used his legally groundless indictments to take over Israel’s political life. Among other things, Mendelblit held a primetime press conference to campaign against Netanyahu and announced Netanyahu’s indictment while the premier was meeting with the US president in the White House. Mendelblit has even used his prosecution of the premier to seize the power to decide if Netanyahu may form a government.
Mandelblit’s behavior is the reason for Israel’s now two-year political deadlock. After his illegally initiated probes of Netanyahu destabilized the government and the political world, Mendelblit used the instability he caused to expand his powers.
The only way politicians will dare to take action to restrain the powers of the legal fraternity is if the fraternity’s power to retaliate by opening criminal probes against them is revoked. So the first step the next Knesset must take is to restore the substantive criminal immunity of Knesset members.
In 2005, the Knesset stood the immunity law on its head. Until then, the law provided automatic substantive criminal immunity to all lawmakers for actions they took while serving in elected office. Under the amended statute, lawmakers have no immunity unless the Knesset Ethics Committee grants it. Obviously, the only lawmakers who will ask for immunity are those that are facing indictment. In other words, the changed law empowered the attorney general to open criminal probes against lawmakers at will.
The lawmakers amended the law because together with the justices, the then attorney general waged a massive campaign, enthusiastically supported by the media to force them to do so – in the name of the “fighting corruption.”
Shortly after the amendment passed, the floodgates opened. Successive attorneys general massively expanded their criminal investigations and indictments of lawmakers and ministers. Almost every politician who tried to limit the powers of the legal fraternity found himself under investigation. Since the 1990s, every sitting prime minister has been placed under criminal investigation. Four justice ministers have been indicted.
If the next Knesset adopts Bennett’s and Sa’ar’s position and tries to advance legal reform without regard to the Netanyahu’s trial, their efforts will quickly come to naught.
With or without Netanyahu, they will still need to begin their efforts by restoring the Immunity Law to its original wording. The only way to deny Netanyahu the protection of a restored immunity law would be to determine that the law doesn’t apply to actions taken before the amendment comes into force. But if the lawmakers so determine, then their amendment will be rendered irrelevant from the outset. After all, the attorney general will be able to simply open investigations regarding actions all the lawmakers undertook before the amendment. Once this becomes apparent, all thought of legal reform will disappear faster than you can say “subpoena.”
But assuming that lawmakers figure out a way to give themselves immunity while leaving Netanyahu’s head on the chopping block, what impact will that have on the governing powers Mendelblit has seized? Will he no longer be empowered to haul journalists and editors into police interrogation rooms for publishing nice stories about politicians involved in clipping his wings? Will Mendelblit retain the power to appoint the atate prosecutor?
Moreover, if they leave Netanyahu hanging, why would his supporters support their efforts at legal reform? How can they get a majority of Knesset members to support legal reform without Netanyahu’s loyalists on board?
Bennett and Sa’ar are right that the only reason Netanyahu wishes to reform the legal system is because his survival depends on such reform. But they are equally, if not more cynical than he. They are hoping that Mendelblit’s war against Netanyahu will remove the leader they cannot defeat at the polls and so clear the road for them to rise to power. What they refuse to see is that if Mendelblit succeeds, all future elections will be irrelevant.
Netanyahu’s self-serving position provides the Knesset with an unprecedented opportunity. Thanks to Mendelblit, there is solid majority support among members of Knesset for comprehensive legal reform. The job of lawmakers committed to such reforms – including Sa’ar and Bennett – is to join forces with the lawmakers who want to stop Mendelblit’s railroading of Netanyahu. Together they can do what lawmakers have been afraid to do since the outset of the so-called “judicial revolution” in the mid-1990s. They can restore the powers of the Knesset and the government by passing and amending laws to restore checks and balances on the judiciary and subordinate the attorney general and the state prosecution to Israel’s elected leaders.